Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13662/88

by W.H.

against the Netherlands

The European Commission of Human Rights sitting in private

on 7 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 January 1988

by W.H. against the Netherlands and registered on 11 March 1988 under

file No. 13662/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1951 and at present

residing at Ede, the Netherlands. In the proceedings before the

Commission he is represented by Mr. G.P. Hamer, a lawyer practising in

Amsterdam.

The facts, as submitted by the parties, may be summarised as

follows:

On 21 June 1987 the applicant's wife left him and took their

9 year old daughter with her. On 31 July 1987, in the subsequent

divorce proceedings, custody of the daughter was provisionally awarded

to the wife. The applicant had the right to see the child every two

weeks.

The applicant was upset by this. He spoke with a social

worker, a clergyman, his mother and a brother about wanting to kill

himself. He apparently threatened to involve his daughter in his

suicide. It appears that he alluded to preparing a "pretty present"

for his wife's birthday on 8 August 1987. The respondent Government

submit that he had stated to his mother, among others, that if he

could not have the child, then his wife should not have her either.

The applicant was due to see his daughter on 7 August 1987. In

view of his allusions to suicide, the people in whom he had confided

feared that he meant to kill his daughter on 7 August. He apparently

had attempted suicide once in 1972 after a girl-friend had left him.

The social worker and the clergyman visited the applicant on 7 August

and were sufficiently concerned about his emotional state to contact

the police and a psychiatrist in order to examine ways of averting a

possible killing or suicide.

Under Section 12 of the Act of 27 April 1884 on State

supervision of mentally ill persons (wet van 27 april 1884, Stb. 96,

tot regeling van het Staatstoezicht op krankzinnigen, usually referred

to as the Mentally Ill Persons Act (Krankzinnigenwet)) the applicant's

mother requested the District Court judge (Kantonrechter) of

Wageningen to order the applicant's detention in a psychiatric

hospital. Under Section 16 of the Mentally Ill Persons Act such a

request should be accompanied by a certificate of a psychiatrist. In

the present case a psychiatrist drew up such a certificate on 7 August

1987, advising the applicant's detention as, according to her, there

was a danger that he would kill his daughter and would commit suicide.

This psychiatrist had never met the applicant. It appears that, in

consultation with the District Court judge, the psychiatrist had

decided not to see the applicant. Under Section 16 of the Mentally

Ill Persons Act the medical certificate must state, as far as

possible, with reasons, whether the patient's condition is such that

it would serve no purpose or be medically contra-indicated for him to

be heard by the judge. In the present case the psychiatrist declared

in this respect that it was contra-indicated to hear the applicant

unless a hearing could take place on neutral ground, such as a police

station.

On 7 August 1987 the District Court judge ordered the

applicant's detention in a psychiatric hospital for six months, after

hearing the applicant's mother, the social worker and the clergyman.

The applicant was not heard by the District Court judge before the

latter took his decision, without the judge giving reasons for not

hearing him. The respondent Government submit that a hearing on

neutral ground could not possibly be arranged as the police have no

authority to move the applicant from his house until they have the

court's order.

In the afternoon of 7 August 1987 the applicant was picked up

by the police and taken to the local police station. There he was

informed by police officers of the decision to commit him to a

psychiatric hospital in the interest of his daughter's welfare.

Subsequently, he was taken to the psychiatric hospital "Wolfheze",

where, the next day, the social worker visited him to explain the

motives for his committal. The applicant did not see a copy of the

committal order until he received one at a later date from his lawyer,

apparently several weeks after he had been taken into detention.

On 10 August 1987 the District Court judge phoned the lawyer

who was representing the applicant in his divorce proceedings,

informing the lawyer that he was appointed to represent the applicant in

relation to the detention order.

On 3 September 1987 the applicant left the psychiatric

hospital without authorisation. On 4 September 1987 he consulted a

psychiatrist in Amsterdam, who declared that the applicant was not

suicidal and was no danger to others.

On 4 September 1987 the applicant instituted summary

proceedings (kort geding) with the President of the Regional Court

(Arrondissementsrechtbank) of Arnhem against the psychiatric hospital,

requesting an order of prohibition against the execution of the

detention order of 7 August 1987. He submitted, inter alia, that the

detention order was illegal as neither the District Court judge, nor

the psychiatrist who had advised the applicant's detention, had seen

the applicant. He based his claim, inter alia, on Article 5 para.

1(e) of the Convention.

By decision of 7 September 1987 the President of the Regional

Court ordered the psychiatric hospital not to execute the detention

order provided that the applicant would not enter the municipality of

Veenendaal where his daughter lived, and that within ten days he

would request the board of the psychiatric hospital to discharge him,

under Section 29 of the Mentally Ill Persons Act. The order of

prohibition would stand until the Regional Court had decided on the

request for discharge except in case of a discharge by the board of

the psychiatric hospital at an earlier stage.

By letter of 14 September 1987 the applicant requested the

board of the psychiatric hospital to discharge him. He submitted that

the detention order was invalid and its execution, therefore,

illegal. He furthermore submitted that in any case on 14 September

1987 he was not mentally ill to such an extent that detention was

necessary.

By letter of 25 September 1987 the board of the psychiatric

hospital advised the Public Prosecutor to reject the request, thereby

indicating that they themselves had rejected the request.

On 5 November 1987 the Regional Court received the request of

the Public Prosecutor to decide on the applicant's request for a

discharge. On 24 November 1987 a hearing was held. The applicant

submitted, inter alia, that the time which had elapsed between the day

he sent his request for a discharge to the board of the psychiatric

hospital and the hearing by the Regional Court amounted to 70 days and

that, therefore, his right to a speedy decision under Article 5 para.

4 of the Convention had been violated. In the applicant's view, this

violation should automatically lead to a discharge without an

examination of the merits.

By decision of 4 January 1988 the Regional Court ordered the

applicant's discharge because it considered a prolonged detention

unnecessary. It found no violation of Article 5 para. 4 of the

Convention, since there was no danger for the applicant that he would

be detained, due to the decision of the President of the Regional

Court of 7 September 1987. The Regional Court considered that even if

there had been a violation of Article 5 para. 4 of the Convention,

this could not lead to a discharge without an examination of the

merits of the case. The Regional Court added that in the case of an

excessive delay the applicant could have instituted summary

proceedings.

On 3 February 1988, the applicant introduced a disciplinary

complaint against the psychiatrist who, without seeing him, had drawn

up the certificate leading to his detention. On 24 September 1988,

the Medical Disciplinary Board (Medisch Tuchtcollege) of Zwolle

reprimanded the psychiatrist. The Board considered, inter alia, that,

despite the apparent urgent danger exhibited by the applicant, the

psychiatrist should have made every attempt to hear him before drawing

up a certificate. The Board furthermore considered that the

psychiatrist's diagnosis had been incorrect, that the medical

certificate contained falsehoods, and that the psychiatrist should

have understood that the urgency of the situation required that the

applicant be taken into custody by order of the Mayor (Burgemeester),

and not committed to a hospital by order of the District Court judge.

COMPLAINTS

1. The applicant complains that the District Court judge did not

hear him or his lawyer, while the psychiatrist had stated that a

hearing of the applicant was possible provided that it took place on

neutral ground. Section 17 para. 3 of the Mentally Ill Persons Act

requires that the patient be heard unless, in the judge's opinion, it

appears from the psychiatrist's statement that a hearing would serve

no purpose or be medically contra-indicated. The applicant complains

furthermore that the District Court judge did not give reasons for not

hearing him. The applicant, therefore, complains that he was deprived

of his liberty in a procedure which was not prescribed by law, within

the meaning of Article 5 para. 1 of the Convention.

2. The applicant complains that he was detained without being

mentally ill. He was not examined by the psychiatrist concerned

before being detained. It also appears that the District Court judge

advised the psychiatrist concerned not to examine the applicant.

The applicant submits that none of the cases listed in Article

5 para. 1 of the Convention were applicable to his situation and he

alleges, therefore, that his detention violated Article 5 para. 1 of

the Convention, and in particular was not permissible under Article 5

para. 1(e).

3. The applicant complains that he was not informed of the reasons

for his arrest. He invokes Article 5 para. 2 of the Convention.

4. The applicant complains that, although by letter of 14

September 1987 he requested the board of the psychiatric hospital to

discharge him, the Regional Court did not order his discharge until

4 January 1988. Thus the Court did not decide speedily on the

lawfulness of his detention, as required by Article 5 para. 4 of the

Convention.

5. The applicant complains that he did not have a fair and public

hearing in the determination of his civil rights and obligations and

that the detention order was not pronounced publicly. He furthermore

complains that the District Court judge told the psychiatrist that

there was no need for her to examine the applicant, thereby favouring

the interests of the applicant's mother, who requested the applicant's

detention. He submits that a detention in a psychiatric hospital

concerns civil rights and obligations. He furthermore submits that as

a result of the placement in a mental hospital he lost the right to

administer his property, which amounts to a deprivation of a civil

right. The applicant invokes Article 6 of the Convention.

6. The applicant complains that, as a result of his detention, he

was limited in his rights and freedoms. In addition, the fact that he

was detained in a psychiatric hospital has become known to third

parties. The applicant complains that there has been an interference

in his private and family life that was not in accordance with the law

and necessary in a democratic society.

The applicant submits that if he was considered to be a danger

to his daughter, a less far-reaching measure than detention could have

been taken.

The applicant complains that his rights and freedoms as set

forth in the Convention were violated but that he did not have an

effective remedy before a national authority since he could not appeal

against the detention order of the District Court judge.

The applicant invokes in regard to these complaints Articles 8

and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 January 1988 and

registered on 11 March 1988.

On 10 March 1989 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

their observations on the admissibility and merits of the application.

The respondent Government's observations were submitted, after

an extension of the time-limit, on 22 June 1989.

The applicant's observations in reply were submitted on

22 August 1989.

THE LAW

The applicant complains that he was detained in a psychiatric

hospital without being heard beforehand, either by the psychiatrist

who drew up a medical certificate or by the District Court judge who

ordered his detention for six months. He submits that he was not of

unsound mind and that his detention was unlawful and not ordered in

accordance with a procedure prescribed by law. He alleges that he was

not informed of the reasons for his detention and that the Regional

Court did not decide on his request for release with due speed.

Furthermore, he complains that he was denied the right to a fair

hearing, that his committal to a psychiatric hospital amounts to an

unjustifiable interference with his right to respect for his private

and family life and that, as no appeal against the committal order is

possible, he had no effective legal remedy concerning these

complaints. The applicant invokes Article 5 paras. 1, 2 and 4

(Art. 5-1-2-4), and Articles 6 para. 1 (Art. 6-1), 8 (Art. 8)

and 13 (Art. 13) of the Convention.

The respondent Government submit that, in the circumstances of

this case, the crisis situation which occurred on 7 August 1987

justified the conclusion that the applicant's mental state constituted

a danger to himself and his daughter warranting committal to a

psychiatric hospital. They point out that the applicant was only

detained from 7 August to 7 September 1987, which accords with the

general situation in the Netherlands that over three-quarters of the

patients committed to a psychiatric hospital do not remain in detention

for the full six months authorised by the court order.

Furthermore, the Government submit that the Mentally Ill

Persons Act does not require the psychiatrist who draws up a

certificate to hear the patient. It also allows the District Court

judge to refrain from hearing the patient if that is medically

contra-indicated. The Government consider that the judge was

justified in concluding that the applicant could not be heard, and

that the urgency of the situation warranted the procedural options

which were chosen. The Government concede, however, that the Mentally

Ill Persons Act, in Section 35b and following, provides for a

different procedure in urgent cases, whereby the Mayor (Burgemeester)

authorises detention for three weeks, to be followed by a speedy

judicial confirmation. Although the procedure chosen in the present

case was followed correctly, it was not the procedure designed for the

applicant's type of case. The Government refrain from drawing any

conclusions in this respect under Article 5 para. 1 (Art. 5-1) of the

Convention.

As regards Article 5 para. 2 (Art. 5-2) of the Convention, the

Government contend that it does not apply to this type of detention,

and that the applicant, nevertheless, was fully informed of the

reasons for his detention by the police officers and the social worker

on 7 and 8 August 1987 respectively. Regarding Article 5 para. 4

(Art. 5-4) of the Convention,the Government argue that, after the

President of the Regional Court in summary proceedings had suspended

the further execution of the detention order on 7 September 1987, the

applicant no longer had to fear being taken into detention and,

therefore, Article 5 para. 4 (Art. 5-4) was no longer applicable to

the release procedure.

Finally, the respondent Government submit that the applicant's

capacity to administer his property was not affected by his

detention. The relevant provisions of the Mentally Ill Persons Act

have been officially declared inoperative. Therefore, Article 6

para. 1 (Art. 6-1) of the Convention does not apply to this case.

In reply, the applicant submits that he was never "of unsound

mind", as was proven by the second psychiatrist's report of 4

September 1987 and by the decision of the Medical Disciplinary Board

against the first psychiatrist. He contends that he never had an

opportunity to defend himself against this medical opinion.

Furthermore, he submits that, as the Government state, the proper

procedure in urgent mental health cases was not followed, and, in the

procedure which was followed, he argues that not hearing the patient

before committing him to a psychiatric hospital for six months cannot

be considered a lawful procedure. He submits that the decision of the

President of the Regional Court in summary proceedings to suspend the

execution of the committal order was unusual, and illustrates the

unlawfulness of the detention.

The applicant also alleges that he was not properly informed

of the reasons for his detention and did not receive a copy of the

committal order. Finally, he submits that, as regards a speedy

examination of his detention under Article 5 para. 4 (Art. 5-4) of the

Convention, it is true that after 7 September 1987 the committal order

was no longer executed, but this was conditional on his not returning

to Veenendaal. The committal order nevertheless remained formally in

effect until the decision of 4 January 1988. The applicant also

contests the Government's claim that the legal provisions relating to

his capacity to administer his property are inoperative.

The Commission considers that the application raises important

questions of law and facts which as a whole can only be determined in

an examination of the merits of the case. It is therefore not

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

For this reason, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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W.H. v. NETHERLANDS

W.H. v. NETHERLANDS

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